The Seventh Circuit Court of Appeals recently dealt with a gender discrimination lawsuit involving a woman's shelter that rejected an applicant for employment solely because he was male. The federal appeals court decided that this case should proceed to trial [Johnson v. Apna Ghar, June 4, 2003]. The issue presented in this case has created renewed interest in the extent to which the law permits an employer to take an applicant's gender into account in making a hiring decision. In other words, when is it legal for an employer to discriminate?

This question affects all camps, and particularly those that are all-male or all-female camps. It affects day camps as much as residential camps — and for-profits as well as nonprofit sponsoring organizations. All camp directors need to understand the applicable laws that affect their hiring decisions, especially if they deem gender to be relevant to choosing a job candidate. Through the following dialogue between camp directors and their employment law attorney regarding the hypothetical situation below, this article examines the limits and opportunities provided by applicable discrimination laws.

Hypothetical:

The Delaware Trails Camp is an all-female summer camp offering a full range of activities for girls, ages five to sixteen. These include boating, fishing, mountain climbing, canoe and kayak, art, drama, and music. For next summer's program, the camp determines that it needs to hire new employees for the following positions: counselor (in charge of directly supervising campers, including at times when they are changing clothes, undressing, sleeping, and showering); canoe/kayak instructor; and music/drama specialist. The camp places ads for these positions in newspapers and at nearby college campuses. The camp is overwhelmed with the response from so many qualified applicants, both male and female. The camp directors, a husband and wife, sift through the letters. They have never hired any male for any position at the camp, other than camp maintenance, and they strongly desire to continue this practice. However, before making any decision, they place a call to their employment-law counsel for guidance.

This is their conversation.

Directors
Michael, you have heard our dilemma. We know some of the young men who have applied are very qualified for the positions we have open, but we have an all-female staff as you know and want to keep it that way. Exactly what is the applicable law?

Michael
First, you have to understand that discrimination based on gender in employment is prohibited by most state laws, and also by Title VII of the Civil Rights Act of 1964. That law, which is administered by the Equal Employment Opportunity Commission ("EEOC"), states that "it shall be an unlawful employment practice for an employer to fail or refuse to hire . . . any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's . . . sex [42 U.S.C. 2000e]."

Directors
Are we big enough to be covered by this federal law, Title VII?

Michael
"Employers" has a special meaning under Title VII. Generally, it covers all employers engaged in interstate commerce that have fifteen or more employees. By the way, you should also know that if you have twenty or more employees, you are also prohibited from discriminating against individuals because of their age (forty and older) as provided by the Age Discrimination in Employment Act. And, the Americans with Disabilities Act, like Title VII, covers employers with fifteen or more employees and prohibits discrimination against qualified individuals with disabilities. Each state has its own thresholds, as far as coverage goes under state anti-discrimination laws, so it is important to know these rules also. For example, many state anti-discrimination laws apply to employers with as few as six employees. I know you don't have fifty employees yet, but when you do, we will need to talk about the Family and Medical Leave Act of 1993.

Directors
Are there any employers that are exempt from Title VII, even though they have fifteen or more employees?

Michael
Yes, Title VII allows some employers to discriminate, but they need to meet certain conditions. This exemption covers "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities [42 U.S.C. 2000e-1(a)]." The camp is a private corporation and is covered by Title VII. And it would not matter if you were organized as a nonprofit entity, by the way.

Directors
Since we do not qualify for the exemption from Title VII, it sounds as if we are covered by the law. But, it just does not seem right that the law would require us to hire males for these positions just because they happen to be the best-qualified candidates in terms of their experience. Our camp is all-female, and young girls are extremely vulnerable. They live together in cabins and need privacy. Most importantly, we are trying to instill in them values and lessons that last a lifetime, and these are best taught to young girls by females, not by males. Plus, if you asked our campers, we are sure they would say that they prefer female counselors, not male counselors.

Michael
I understand completely. Most parents would not approve of their thirteen-year-old daughters staying in a cabin with a male counselor. The same principles apply whether a camp is all-female or all-male.

Let's explore an important defense to discrimination claims — a defense that I believe you may be able to take advantage of in connection with your desire to only hire females.

First, I know you realize that Title VII provides that your employment decisions may not be motivated by considerations of sex, race, religion, or national origin. It is easy for an affected person to file an EEOC charge and go to court. All he must do is prove what is known as a prima facie case. And all that takes is a showing that he is a member of a protected class and that he suffered an adverse employment action.

What is an adverse employment action that can be the subject of a lawsuit? It is anything that an employer does that affects an individual's job and that is not positive. For example, a person applies for an open position at the camp for which he is qualified, but he is rejected. If the camp seeks other candidates and/or hires a lesser-qualified female applicant, this could amount to discriminatory conduct known as "disparate treatment."

Once the individual shows he suffered an adverse action, the employer must prove that it had a legitimate and non-discriminatory reason for its decision. The individual (here, the unsuccessful male applicant) then has to show that the employer's reason for the adverse action was not legitimate. This is known as showing that the employer's reason for not hiring was a "pretext." Once pretext is proven, then the court would presume that the adverse action was illegal, unless the employer has another defense in its arsenal.

Now that you have the fundamentals of Title VII in mind, let's go one step further because I believe that the camp has available to it a very important defense, known as the bona fide occupational qualification defense. This is also called the employer's "BFOQ" defense.

Directors
Exactly what is the employer's "BFOQ defense"?

Michael
This defense, which is specifically set forth in Title VII, allows an employer to intentionally choose employees on the basis of gender when that trait is shown to be a necessary qualification. (By the way, the law does not provide a BFOQ defense based on race.) The law states that intentional discrimination on the basis of gender is permissible for jobs in which gender is a "bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise [42 U.S.C. 2000e-2(e)1]." Now, keep in mind that the camp, and not the rejected job candidate, bears the burden of proving this affirmative defense. In addition, the U.S. Supreme Court has stated that the BFOQ defense is only available if an employer can show that "the essence of [its] business operation would be undermined by not hiring members of one sex exclusively [Dothard v. Rawlinson, 433 U.S. 321 (1977)]." In that case, the court also stated that while Congress established the statutory BFOQ defense to allow some employers to implement gender-based practices, this defense was "meant to be an extremely narrow exception to the general prohibition of discrimination."

Directors
Sounds interesting, but what about the EEOC? How do they feel about the BFOQ defense?

Michael
The EEOC acknowledges that there is legitimate discrimination when a BFOQ can be proven. For example, a French restaurant may have a legitimate preference to hire a French cook. A major league baseball team has a legitimate preference for male players. The EEOC's regulations call for a narrow interpretation of the BFOQ defense, and the agency is careful to point out that an employer may not use this defense when a hiring decision is based on nothing more than a stereotypical view about the capabilities of males and females. The agency also explicitly rejects customer preference as a basis for the recognition of a BFOQ.

Directors
Have the courts developed the BFOQ defense?

Michael They have. You may recall the case involving the Virginia Military Institute ("VMI"). In that case, the United States challenged VMI's male-only admissions policy. Although VMI was not an employer with respect to its students, the BFOQ defense was relevant because the Commonwealth of Virginia intentionally treated women differently from men by excluding them from a military college. VMI openly admitted its all-male admissions policy. VMI argued that accommodating women would destroy its fundamental educational methodology and mission. They attempted to use BFOQ as a defense arguing the necessity of not destroying a method that was essential to its institutional identity. The Court held that VMI had not met its burden of proving the defense, because some women could benefit from the program and the projected negative consequences were speculative and based on stereotypes. The Court's decision not only required VMI to admit women, but also to make changes in barracks living and physical skill requirements to provide equal opportunities for women.

Hooters Restaurant came under fire after the EEOC made allegations that it had violated Title VII by discriminating against men. In 1992, seven men argued that Hooters discriminated against them when Hooters rejected their applications for employment as wait staff. Hooters hired only female servers, bartenders, and hosts. As a defense, Hooters claimed that it provided "vicarious sexual recreation." Hooters attempted to use female sexuality as a BFOQ, which may in fact have worked if it was truly in the entertainment business. However, Hooters marketed itself as a family restaurant. Accordingly, when the court considered the essential nature of its business, i.e., a restaurant, its BFOQ defense was soundly rejected. In settling the class action lawsuit that challenged its right to hire only women in front-of-house positions, it was reported that Hooters agreed to pay $2 million to the males who were denied the opportunity to serve as Hooters girls, $1.75 million in attorney's fees, and to create three gender neutral positions. Wait staff would still be called "Hooters Girls," but they would be assisted by "Hooters Persons," hired without regard to gender.

Health care employers have also found refuge in the BFOQ defense. Health care institutions, responding to perceived patient privacy needs, sometimes hire applicants based on gender. The patient privacy issue concerns personal patient care, including bathing, dressing, or toileting assistance. As the frequency of this type of interaction occurs, a patient may claim that her privacy rights have been violated.

An early Title VII case was brought by a private duty male nurse who alleged that a hospital engaged in gender discrimination by not allowing him to care for female patients. On two occasions, this male nurse was assigned to provide private nursing care to female patients. However, hospital staff informed him that he could not attend to a female patient because he was a male. The court found that the hospital had discriminated against him based on his gender by denying him access to the patients and not allowing the individual patient to determine whether to accept the male nurse's services.

In another case, a residential retirement home used the privacy rights of female patients in its defense. This retirement home had a predominately female clientele. It denied a male nurse employment. The district court required the employer to prove that it had a factual basis for believing a male nurse would undermine the essence of the employer's business. The employer also had to show that it could not assign the job responsibilities in such a way that there would be minimal clash between the privacy of its customers and the non-discrimination principles of Title VII. Based on affidavits of female guests objecting to care by male nurses, the court determined that the employer had successfully established a BFOQ defense based on the privacy interests of its clientele. The court distinguished the privacy rights of patients from mere customer preference.

Not all cases involving patient care turn out the same. In 1991, the Ohio Supreme Court considered, in Little Forest Medical Center v. Ohio Civil Right Commission, the BFOQ defense. The medical center denied a male applicant a nursing assistant position because of his gender. The center served 256 elderly patients, the majority of who were female. The Ohio court determined that the employer did not establish that sex was a BFOQ because it could not prove that the policy protected its patient's privacy rights, nor did the center demonstrate why it could not assign male nurse assistants to male patients and non-objecting females.

There are very few reported cases involving camps and institutions serving young people. Sex was not a BFOQ for a position with an all-male youth camp, and the refusal to consider a qualified female applicant because of her sex violated the Act [Griesbach v. State (Wisconsin Division of Industry, Labor and Human Relations, April 13, 1976)]. In another Wisconsin case, the requirement that a male fill the position of youth counselor was a BFOQ. The position required a same-sex role model in the treatment of pre-delinquent boys [Robinson v. Kenosha Youth Foundation (Wisconsin Labor and Industry Review Commission, April 30, 1982)].

In City of Philadelphia v. Pennsylvania Human Relations Commission, 7 Pa. Commw. 500, 300 A.2d 97 (1973), the court held that counselors of one sex could not effectively counsel youths of the other sex about their psychosexual problems. However, in Jatczak v. Ochburg, 540 F. Supp. 698 (E. D. Mich. 1982), an employer could not establish the BFOQ defense when it refused to hire a woman to work in a youth workshop for black male adolescents. And, in St. John's Home for Children v. West Virginia Human Rights Commission, 375 S.E.2d 769 (W. Va. 1988), the court found that a male-only BFOQ was necessary for child care professionals working with boys because "[s]upervising violent, aggressive, male adolescents involves protecting the weaker members of the patient community from the stronger ones; furthermore, it also involves protecting suicidal patients from themselves."

Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987) is another case that provides some guidance to us. Crystal Chambers, a woman in her early 20s, was an arts-and-crafts instructor with the Girls Club of Omaha. The Girls Club insisted that all of its employees act as role models for the participants. When Chambers, who was unmarried, became pregnant, she was fired. Chambers sued the Girls Club, alleging pregnancy discrimination and race discrimination (both she and 90 percent of the Girls Club participants were African-American). The federal appeals court, however, sided with the Girls Club, deciding that its role model requirements were BFOQs that justified Chambers' termination. Thus, the courts have recognized that there is value in an employee's ability to teach life-lessons when this is a primary mission of the employer.

Directors
Knowing this, is the BFOQ defense still available to us?

Michael
Yes, I believe that it is, particularly in regard to the counselor position. Keep in mind that, to take advantage of the BFOQ defense, the camp admits that gender was a factor in its hiring decisions. It must be able to demonstrate that its hiring decisions based on gender are reasonably related to the essence of its business. The camp will also want to demonstrate that there is a factual basis for believing that it is impossible or impractical to make any other decision. In other words, the camp should show that the nature of its business allows no reasonable alternatives to its gender-based classifications that would not interfere with campers' privacy rights.

Therefore, our argument is that our preferences and those of our campers are based on fundamental issues — such as issues of personal security and personal privacy. We should also be able to demonstrate that certain life lessons in an all-female camp are best and more appropriately taught by female counselors. Several courts have been willing to allow gender to come into play as a hiring criterion if the customer's preferences (the camper's preferences, in our case) are based on the right to personal privacy. "Personal privacy" has been construed rather narrowly by the courts, but as indicated by the cases I discussed previously, it has come into play where a customer's bodily privacy interest could be compromised. Personal privacy concerns are highly relevant in a residential camp context because of a counselor's responsibilities and access to her campers. Even in a non-residential context, where a counselor may, for example, be responsible for campers who are dressing and undressing (for example, for swimming lessons), these same concerns exist.

I believe that the BFOQ defense is available to the camp in the case of the counselor position. As for the other positions, we will have to take a very close look at them because it is not as clear that personal privacy issues would be relevant. If the camp houses its maintenance employees in a separate location, one factor that a court will certainly consider is whether the male candidates could live there.

These cases are dealt with very much on a case-by-case basis, and the specific facts always have to be considered and scrutinized. There is no black-and-white answer here.

Directors
What if a lawsuit is filed and we lose? What is our "worst case"?

Michael
First, you would be ordered to discontinue the practice of excluding males from the positions in question. Then, in regard to unsuccessful candidates, the court would likely order the payment of the amount they would have earned but for the discriminatory treatment they received, plus lost benefits. In addition, the court can order the camp to hire the unsuccessful candidate and to provide retroactive seniority to him. In addition, depending on how many employees the camp has, it can be ordered to pay compensatory and punitive damages to the plaintiff, which are intended to compensate him for his pain and suffering and to punish the employer that discriminated against him.

Scale of Compensatory/Punitive Damages

No. of
Employees

Compensatory/Punitive Damages Maximum Amount

15-100

$50,000

101-200

100,000

201-500

200,000

501+

300,000

In addition to the damages (illustrated in the scale above), a successful plaintiff in a Title VII case can recover his attorney's fees and costs. On top of this, the employer (whether it wins or loses) will also incur its attorney's fees and costs, and these are generally not awarded to the employer even if it wins in court unless the employer can demonstrate that the plaintiff's action was wholly frivolous. This would be difficult to do in a case in which the camp admits it discriminated, but seeks the protection of the BFOQ defense.

Directors
Our conclusion then is that we have a very good BFOQ defense in the case of the counselor, and we may be able to use it in regard to the other two positions. What else can we do?

Michael
Your conclusion is correct. In addition to understanding the limits of the law in regard to hiring decisions, you should take a close look at your camp's mission statement, its employee and camper handbooks, and any other written materials, including your position descriptions. In regard to position descriptions, you probably already list the "essential functions" of the position pursuant to the ADA. If you have a position that requires a member of one gender, it would be appropriate to state this in the written description, along with a statement of the reason why. This will support a later decision that is challenged by a member of the opposite sex.

You should consider all of these documents in light of your burden to prove that a gender-based hiring decision should be lawful because gender is a BFOQ for certain positions. Then, after you have done this review, make sure that everyone on your staff who interviews or has anything to do with the hiring process is given this same knowledge and information. This is the way to reduce the risk of an EEOC charge or litigation, and is just good preventative planning.

Michael A. Blickman is a partner with the Indianapolis law firm of Ice Miller, where he also serves as chairman of the firm's Labor and Employment Section.